Deliberative process exemption-Colorado

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A deliberative process exemption to open records requests is one that shields from public scrutiny that papers and materials that elected officials use in the course of reaching a decision. There are two clear arguments for this exemption. The first argument for the exemption centers on the notion that public officials should be able to conceal much of the thought process behind making a decision in order to protect the free flow of opinions and information. The courts and legislatures have traditionally argued that without the exemption in place, the ability of public officials to receive opinions from their constituents would be hampered. In addition, the exemption is in place to protect the internal thought processes and notes of public officials from public scrutiny, as predecisional material is typically considered work product and is thus exempt. Various states approach this exemption differently, with some enforcing a broad definition while others reject it outright.


The Colorado Open Records Act has a number of clear exemptions. The first, found at Colo. Rev. Stat. 24-72-202(6)(a)((II)(A and C) which exempts correspondence that is work product and all correspondence with constituents "that clearly implies by its nature or content that the constituent expects that it is confidential."[1]

An additional exemption for all "work product" can be found at Colo. Rev. Stat. 24-72-202(6)(b)(I)-(III). The statute exempts, "Work product prepared for elected officials. However, elected officials may release, or authorize the release of, all or any part of work product prepared for them."[1]

Work product

The law also contains an extremely expansive definitions of work product found at Colo. Rev. Stat. 24-72-202(6.5). The definition defines "work product" as:

"All intra- or inter-agency advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority."[2]

The statute states that "work product" includes:

  1. Notes that function as background work for decisions.
  2. Preliminary drafts of documents.
  3. Bill and amendment drafts, as well as documents prepared in the process of drafting bills.
  4. Documents created by legislative staff when responding to constituent correspondence, when the correspondence qualifies for exemption
  5. Research conducted by legislative staff relating to preparing a bill.

Work Product does not include:

  1. Final bill drafts.
  2. Final research projects relating to bills, unless the legislator specifically requests that they remain exempt.
  3. Final versions of documents which announce final decisions.
  4. Final versions of financial audits and documents relating to the expenditure of tax dollars.
  5. Any work product which is distributed to public officials at an open meetings.
  6. Final versions of documents that contain solely factual information.
  7. Comparisons of any existing laws or regulations with proposed bills, comparisons amongst proposed legislation and comparisons of legislation within different jurisdictions.
  8. Compilations of records already considered public.
  9. Compilations of current laws or ordinances.[3]

See also